The evidence showed a sale by defendant of intoxicating liquor in less quantity than one gallon. The indictment alleged a sale of a half pint of whiskey, and the evidence showed a sale by defendant of ‘ ‘ the liquor, at the time and place mentioned in the indictment.”
The evidence having shown a sale of the intoxicating liquor by the defendant, it devolved upon him to show legal authority to make the sale. Wharton’s Crim. Law, sects. 708 and 2434. The sale of intoxicating liquor by defendant in a quantity less than one gallon without a license as a dramshop keeper was a violation of the dram-shop act, unless the sale was made under such circumstances as to bring it within, the protection of some other statute. The defendant, having been indicted for a violation of the dramshop act, it is very plain that he ■could not escape the penalty, imposed by that act, by showing that the act committed by him was, also, in violation of another statute. The sale by defendant having been in violation of the dramshop act, he must suffer the penalty of that act, unless the sale was made by him under the protection of some other statute.
*426The defendant insists that the sale by him was under the protection of the statute of this state relating to the sale of intoxicating liquors by druggists. The act of 1879 relating to that subject was. repealed by the act of 1881, entitled£ £ An act to regulate the sale of medicines and poisons by druggist and pharmacists.” Laws of 1881, p. 130; State v. Roller, 77 Mo. 120. The act of 1881 does-not define the term “druggist” in express terms, but “it, by implication, declares that no one shall be so regarded unless registered as such under its provisions.” State v. Roller, supra. By section five of the act of 1881 it is provided that “any person or persons not a pharmacist or druggist, may own and conduct such store if he or they keep constantly in his or their employ a competent pharmacist or druggist.” By the subsequent act of 1883, relating to said subject (Laws of 1883, p. 89) the-act of 1881, in the above named respect, is not affected In that respect the act of 1881 was still the law, at the-time of the sale by defendant. In order, therefore to-bring the sale by him within the protection of the statute relating to the sale of intoxicating liquors by druggists it was necessary for the defendant to show that he was a duly registered druggist or pharmacist, or that he kept constantly in his employ a duly registered druggist or pharmacist. The defendant failed to show either. The court properly refused the declaration of law, and on the evidence,, properly found the defendant guilty. ’
Judgment affirmed.
All concur.